Labor and employment partner Ryan Funk spoke with Law360 Employment Authority about the ongoing legal uncertainty surrounding the National Labor Relations Board’s (NLRB) Thryv standard, which expanded the types of payments employers must provide to victims of unfair labor practices.
The article explains that the NLRB’s approach demonstrates the range of discretion the agency’s leadership exercises, especially as circuit courts remain split over the Board’s authority to order these broader remedies. “On its own, the conflict between the circuits does not affect the board's ability to order Thryv remedies because the agency follows a policy of nonacquiescence,” Funk said, noting that the Board does not consider itself bound by lower court decisions that conflict with its rulings.
“Obviously if you're the people at the board tasked with defending [Thryv], you'd better be paying attention to what the courts are saying, but in the field they're not supposed to be influenced by what's going on at the circuit courts,” Funk added.
Since Thryv was issued in 2022, the Third, Fifth, and Sixth Circuits have found the Board overstepped its authority, while the Ninth Circuit upheld the standard. Despite these challenges, a May 2025 memo from former acting NLRB General Counsel William Cowen remains in effect, instructing regional offices to take a narrow view of available remedies. Funk observed that this guidance shows that board prosecutors are taking a cabined view of the types of payments employees can recover that would likely extend into the compliance phase as well as in settlements.
“I would assume the Thryv dissent is effectively the current standard,” Funk said, emphasizing that the Board’s current practices reflect a cautious approach until either the Supreme Court or a new Board majority resolves the issue.
